Grave injustice: fight to clear a dead man goes to unusual appeal

For the first time in Australia, a dead person could be acquitted of a crime in a very belated day in court, writes Jonathan Swan.

He was old, sick and holed up in a men's home, but two weeks before he died, Fred McDermott was still getting hassled about the murder.

''People still believe I did it,'' McDermott told a television journalist. ''They said 'He got out on a royal commission, but that's the bloke who knocked over Lavers'.''

In that last interview, the old shearer looked like a hunting trophy. Leukaemia, two heart attacks and years of living rough had left him a skeleton with a pale coat of skin. When he died, in 1977, McDermott had been out of prison for 25 years. But he had never been acquitted of the murder experts say he could not have committed.

''Employers all over the place know my name and I didn't stand a chance anywhere,'' he said.

Betty Sheelah heard about her cousin's death on the news. ''He ended up a real broken man,'' she said. ''He still had that murder thing hanging over his head.''

If you had told Ms Sheelah then that decades later she would be in a Sydney court watching a barrister fight to make her cousin the first dead person ever to be acquitted in Australia, she would never have believed you.

''It's all because Ted Markham found that skeleton,'' she said.

In November 2004, a Grenfell farmer, Ted Markham, spotted something white in the grass on his property. ''I picked it up and turned it round and saw two open eye sockets looking at me,'' he told ABC News.

Police found other bones in a nearby cave. DNA tests confirmed they belonged to Harry Lavers, who owned a Grenfell petrol station in the 1930s.

The last time Lavers had been seen was the morning of September 5, 1936. He woke before dawn and told his wife he was going out to feed the horses. She rose an hour later, and thinking it odd that her husband had not lit the fire, she checked out the front of their petrol station.

The hose of one of the bowsers lay on the ground. Blood and hair mingled at its base.

Tyre tracks ran across the soil in front of the bowsers and kept running along the unmade road north from Grenfell to Forbes. Residents said they had seen a noisy touring car headed north. Essie May King, who worked the show circuit as a phrenologist and psychologist, told police she had seen two men in a touring car on that road the day before Lavers disappeared. But police found nothing.

The case lay dormant until 1944, when detectives in Sydney heard that a shearer in Griffith had confessed to Lavers's murder. This led police to McDermott, who had told his girlfriend years before that police had interviewed him about Lavers's disappearance. When she got drunk she would sometimes accuse McDermott of killing Lavers. To shut her up he would say: ''Yeah, I did it.''

Now they had a suspect, police called Essie May King and asked her to look at some photos. They showed her a portrait of McDermott standing in the sun with his eyes closed. King identified him as one of the men she had seen in the car nine years earlier.

''That identification would never be allowed in a court today,'' said Tom Molomby, SC, who as well as defending McDermott, has written a book about the saga.

On Wednesday, Mr Molomby will tell the NSW Court of Criminal Appeal that McDermott's conviction was based on shaky evidence, which collapsed with the discovery of the skeleton.

A state coroner called McDermott's conviction a ''gross miscarriage of justice''. A royal commission freed him from jail in 1952 because there were too many doubts about the evidence. But he was never acquitted, because common law denies dead people the right to an appeal. Mr Molomby has found a loophole - under the Crimes (Appeal and Review) Act 2001, a relative of the accused is allowed to petition the Attorney-General.

Ms Sheelah, now 74, says she has petitioned because ''it's time Fred's name was cleared''.

''I know it's probably too late for Fred, but it's not too late for the rest of the McDermotts, and it's not too late to have it erased off our family history.''